delivered the opinion of the Court.
As to the first ruling of the Judge, that upon the evidence introduced, the plaintiffs could maintain their action on the second count, it is unnecessary now to give an opinion, except so far as it relates to the character of the tenant’s possession.
The demandants claim possession of an undivided moiety of the demanded premises, under a mortgage deed from William Bean, the father. The tenant, by a plea of special non tenure, alleges that, at the time of suing out the demandants’ writ, he was not, and never since has been, tenant of the freehold, but then held and continues to hold and occupy the premises, as ten*137ant at will under Elijah Bean, who is, and at the time of suing out the writ, was, and ever since has been, tenant of the freehold.
If the tenant succeed in supporting his plea by proof, he will shew conclusively that there is no cause of action, and will, therefore, be entitled to judgment.
The Judge ruled, that the testimony of Joseph Bean, if believed, was sufficient to show that the defendant held the premises as tenant of the freehold. By that testimony it was proved, that William Bean, Jr. the tenant, shew the witness a letter from IIall, one of the demandants, in which he stated that the “ respondent must not be put out with him, Hall, if he commenced a suit against respondent, if he carried on the land any longer ; that the respondent said he was not afraid of Hall’s title, that he meant to go on and carry on the land as he had done and that, in a subsequent conversation, he said, “ he was not afraid of Hall’s claim.” Now, this evidence taken by itself, without any reference to other facts in the case, W'ould be sufficient, perhaps, to negative a plea of non-tenure. But it is to be kept in mind, that Hall had a claim to the premises, separate and distinct from that which he and Conant held under William Bean, the father. Hall’s separate title was by mortgage from Elijah Bean, who continued in possession, and who testified, as reported by the Judge, that William, Jr. the tenant, occupied the premises by his “consent and agreement.” When Hall demanded possession, the tenant might well suppose that it was under his mortgage deed from Elijah, and if actually in under Elijah, as testified by the latter, the tenant’s statement to Joseph Bean would not be such a direct assertion of claim as tenant of the freehold, as necessarily to exclude any other construction. If so, then, although Joseph Bean’s testimony should stand uncontradicted, the tenant’s plea may also stand as not inconsistent with it. If he was not in under Elijah, then his declaration to Joseph would be evidence against him; but if he did so hold, as testified by Elijah, then his declarations might be susceptible of a construction consistent with his plea. The fact how he held, whether as mere tenant at will under Elijah, or as tenant of the freehold, we think, ought to have been settled by the jury, and, accordingly, the default must be taken off and a new trial granted.